Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Bermuda

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

Previous comment

Article 2 of the Convention. Insertion of labour clauses in public contracts. In its previous comments, the Committee expressed the firm hope that the Government would take steps without delay to formulate standard bidding documents incorporating labour clauses in all public contracts (whether for construction works, goods or services) that are fully aligned with the requirements of Article 2 of the Convention. The Committee notes with regret that no measures have yet been taken by the Government to give effect to the Convention in either law or practice. The Government once again reiterates that all contracts, including public employment contracts, are subject to the minimum standards set out in the Employment Act, 2000. The Government indicates that this prevents a fluctuation in standards for public and private contracts. While noting the Government’s indication regarding the applicability of the Employment Act, 2000 to public contracts, the Committee once again recalls that the essential purpose of the Convention is to ensure that workers employed under public contracts enjoy the same conditions as workers whose conditions of employment are fixed not only by national legislation, but also by collective agreements or arbitration awards, and that in many cases the provisions of the national legislation respecting wages, hours of work and other conditions of employment provide merely for minimum standards which may be exceeded by collective agreements. Thus, the mere fact of the national legislation being applicable to all workers does not release States which have ratified the Convention from the obligation to take the necessary steps to ensure that public contracts contain the labour clauses specified in Article 2 of the Convention (see 2008 General Survey on labour clauses in public contracts, paragraphs 40, 41 and 45). The Committee, therefore, and once again, expresses the firm hope that the Government will take steps without delay to formulate standard bidding documents incorporating labour clauses in all public contracts (whether for construction works, goods or services) that are fully aligned with the requirements of Article 2 of the Convention.It once again requests the Government to indicate progress made in this regard.The Committee also requests the Government to provide detailed updated information on the application in practice of the Convention, including summaries of inspection reports, information on the number and nature of infringements reported; and any other information which would enable the Committee to assess the manner in which the Convention is applied in practice.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Article 2 of the Convention. Insertion of labour clauses into public contracts. In its previous comments, the Committee requested the Government to formulate standard binding documents incorporating labour clauses into all public contracts and to provide a copy of the Code of Practice for Project Management and Procurement, which was in preparation under the Good Governance Act 2011. The Committee notes the draft version of the Code of Practice for Project Management and Procurement transmitted by the Government with its report. It observes, however, that the draft Code of Practice does not refer to or contain any labour clauses ensuring that workers engaged under public contracts enjoy conditions of labour, including wages and hours of work, which are not less favourable than those established for work of the same character in the same district, as required under Article 2(1) of the Convention. The Committee once again recalls that the principal objective of the Convention is to promote good governance and socially responsible public procurement by requiring contractors to apply locally established prevailing rates of pay and terms and conditions of work as determined by law or collective agreement. The Convention calls for the establishment of a level playing field – in terms of labour standards – for all economic actors, so as to ensure fair competition. Requiring all bidders to respect, as a minimum, certain locally established standards prevents wages, working time and working conditions from being used as elements of competition. Consequently, no downward pressure on wages and working conditions may be exerted. The Committee expresses the firm hope that the Government will take steps without delay to formulate standard bidding documents incorporating labour clauses into all public contracts (whether for construction works, goods or services) that are fully aligned with the requirements of Article 2 of the Convention. It requests the Government to keep the Office informed of progress made in this regard and to transmit a copy of the Code of Practice for Project Management and Procurement once it is adopted.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 2 of the Convention. Insertion of labour clauses into public contracts. In its previous comment, the Committee asked the Government to clarify whether the administrative instructions which had been adopted on 29 December 1962 and which gave effect to the requirements of the Convention, still remained in force or whether they had been amended or replaced by new texts.

In its latest report, the Government indicates that it is unable to answer definitively whether such instructions are still in force. It also indicates that the Good Governance Act 2011, which is operative as from 21 October 2011, established the Office of the Project Management and Procurement within the Ministry of Finance to be responsible for managing the selection and award of government contracts in accordance with principles of transparency and best practice. The Government further states that the Contracts and Compliance Manager within the Office is currently preparing contract templates for public contracts which will include social, economic and environmental criteria in line with international practice. Moreover, the Government states that the current form of contracts used for construction projects has been in use for some time and has been drafted in compliance with internationally recognized standards, such as the International Federation of Consulting Engineers (FIDIC).

While noting these explanations, the Committee wishes to recall the main objective of the Convention which is to promote good governance and socially responsible public procurement by requiring contractors to apply locally established prevailing pay and other working conditions as determined by law or collective agreement. The Convention proposes a common level playing field – in terms of labour standards – for all economic actors so as to ensure fair competition. By requiring all bidders to respect, as a minimum, certain locally established standards, wages, working time and working conditions may not be used as elements of competition and consequently no downward pressure on wages and working conditions may be exerted. Noting that a code of practice for Project Management and Procurement to be followed by all public officers concerned with public procurement operations is currently under preparation under the Good Governance Act 2011, the Committee hopes that the Government will seize this opportunity in order to formulate standard bidding documents incorporating labour clauses for all public contracts (whether for construction works, goods or services) fully aligned with the requirements of Article 2 of the Convention. The Committee requests the Government to keep the Office informed of any progress made in this regard and to transmit a copy of the code of practice once it is adopted.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 2 of the Convention. Insertion of labour clauses into public contracts. The Committee notes with regret that the Government’s report essentially reproduces information which had been previously communicated to the Office. While noting the adoption of the Employment Act 2000, which sets out minimum employment standards and establishes an Employment Tribunal to adjudicate on claims, the Committee observes that the information provided by the Government bears strictly no relevance to the procedure for the award or execution of public contracts. The Committee recalls that it has repeatedly requested the Government to clarify whether the administrative instructions which had been adopted on 29 December 1962 and which gave effect to the requirements of the Convention, still remained in force or whether they had been amended or replaced by new texts. In the absence of a clear response on this point, the Committee once again asks the Government to specify how it ensures the application of the Convention both in law and in practice.

The Committee recalls that the Convention requires the insertion of labour clauses into all public contracts falling within its scope as well as sufficient publicity for the terms of those clauses and appropriate sanctions in case of non-observance. In this respect, the Committee refers to paragraphs 41–45 and
110–113 of the General Survey of 2008 on labour clauses in public contracts in which it pointed out that the applicability of the general labour legislation to the conditions under which public contracts are carried out is insufficient to ensure the implementation of the Convention. Indeed, the Convention aims at ensuring that workers employed in public contracts enjoy working conditions that are not less favourable than those established by collective agreement, arbitration award or by national labour legislation. Even if collective agreements were applicable to workers engaged in the context of the execution of public contracts, the implementation of the Convention would retain its full value in so far as its provisions are designed precisely to ensure the specific protection needed by those workers. For example, the Convention requires the adoption by the competent authorities of measures, such as the advertisement of specifications, to ensure that tenderers have advance knowledge of the terms of the labour clauses (Article 2, paragraph 4, of the Convention and paragraph 7 of the 1962 administrative instructions). It also requires notices to be posted in conspicuous places at the workplace to inform workers of the conditions of work applicable to them (Article 4(a) of the Convention and paragraph 9(a)(iii) of the administrative instructions). Finally, it provides for sanctions in the event of non-compliance with the terms of labour clauses, such as the withholding of contracts or the withholding of payments due to contractors (Article 5 of the Convention, and paragraphs 10 and 11 of the administrative instructions), which may be more directly effective than those available for violations of the general labour legislation.

Part V of the report form. Further to its previous comments, the Committee requests the Government to provide up to date information concerning the matters dealt with in the Convention, including for instance the approximate number of public contracts awarded during the reporting period and the number of workers engaged in their execution, extracts from labour inspection reports showing the number and nature of any infringements of the relevant legislation observed, copies of official studies concerning the social aspects of public contracting, etc.

For all useful purposes, the Committee attaches herewith a copy of a Practical Guide, prepared by the Office principally on the basis of the General Survey of 2008 on Convention No. 94, to help better understand the requirements of the Convention and ultimately improve its application in law.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

In its previous comments, the Committee had drawn the Government’s attention to the need to ensure the insertion of appropriate labour clauses in public contracts in conformity with the requirements of the Convention in view of the fact that it was never made clear whether the revised administrative instructions of 29 December 1962, by which effect was given to the Convention, were still in force. In its last report, the Government states that it is in the process of drafting legislation to address employment standards and that following consultations with the social partners a bill will be prepared for submission to the legislature.

The Committee firmly hopes that the Government will make every effort to enact implementing legislation in the very near future. It also requests the Government to indicate in its next report any progress achieved in this regard.

In addition, the Committee asks the Government to supply, in accordance with Part V of the report form, all available information on the manner in which the Convention is applied in practice and to provide a sample of the public contracts now in use.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Finally, the Committee seizes this opportunity to refer to this year’s General Survey which contains an overview of public procurement practices and procedures in so far as labour conditions are concerned and makes a global assessment of the impact and present-day relevance of Convention No. 94.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

In its previous comments, the Committee had drawn the Government’s attention to the need to ensure the insertion of appropriate labour clauses in public contracts in conformity with the requirements of the Convention in view of the fact that it was never made clear whether the revised administrative instructions of 29 December 1962, by which effect was given to the Convention, were still in force. In its last report, the Government states that it is in the process of drafting legislation to address employment standards and that following consultations with the social partners a bill will be prepared for submission to the legislature.

The Committee firmly hopes that the Government will make every effort to enact implementing legislation in the very near future. It also requests the Government to indicate in its next report any progress achieved in this regard.

In addition, the Committee asks the Government to supply, in accordance with Part V of the report form, all available information on the manner in which the Convention is applied in practice and to provide a sample of the public contracts now in use.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which reads as follows:

In its previous comments, the Committee recalled that the Convention was applied by the revised administrative instructions of 29 December 1962 and asked the Government to state whether these instructions were still in force and, if so, whether the contracts awarded by public authorities in accordance with these instructions contained the clauses provided for in paragraph 5 of the said instructions.

The Committee notes that the Government repeats in its report that collective bargaining in Bermuda has become sufficiently widespread to render the provisions of the Convention inappropriate.

The Committee would point out that by declaring the Convention applicable to Bermuda, the Government undertook to ensure the inclusion of appropriate labour clauses in public contracts in accordance with the provisions of the Convention. It therefore repeats its request that the Government should state whether the above-mentioned instructions of 1962 are still in force. Please also provide a sample of public contracts containing labour clauses.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

In its previous comments, the Committee recalled that the Convention was applied by the revised administrative instructions of 29 December 1962 and asked the Government to state whether these instructions were still in force and, if so, whether the contracts awarded by public authorities in accordance with these instructions contained the clauses provided for in paragraph 5 of the said instructions.

The Committee notes that the Government repeats in its report that collective bargaining in Bermuda has become sufficiently widespread to render the provisions of the Convention inappropriate.

The Committee would point out that by declaring the Convention applicable to Bermuda, the Government undertook to ensure the inclusion of appropriate labour clauses in public contracts in accordance with the provisions of the Convention. It therefore repeats its request that the Government should state whether the above-mentioned instructions of 1962 are still in force. Please also provide a sample of public contracts containing labour clauses.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes that, according to the Government, collective bargaining in Bermuda has become sufficiently widespread to render the provisions of the Convention inappropriate. The Committee recalls that the Convention was applied by the revised administrative instructions of 29 December 1962 and it would appear that these instructions are still in force. In view of the information provided in the Government's last report, the Committee asks it to state whether these instructions are still in force and, if so, whether the contracts awarded by public authorities in accordance with these insructions, contain the clauses provided for in paragraph 5 of the said instructions.

In addition, the Committee asks the Government to provide information on the practical application of the Convention, in accordance with point V of the report form, stating in particular the number of public contracts awarded and the number and nature of any violations recorded, and enclosing a sample of the public contracts now in use.

Direct Request (CEACR) - adopted 1987, published 74th ILC session (1987)

The Committee would be grateful if the Government would supply in its next report the information on the practical application of the Convention requested in point V of the report form, including particulars of the number of public contracts concluded, the number and nature of contraventions reported, if any, and a specimen copy of public contract forms currently in use.